Sunshine Coast Regional Council - [2021] QCAT 198

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sunshine Coast Regional Council [2021] QCAT 198

PARTIES: SUNSHINE COAST REGIONAL COUNCIL

(applicant)

APPLICATION NO/S:

ADL043-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

23 February 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

1.       The Queensland Civil and Administrative Tribunal has jurisdiction to determine the application by the Sunshine Coast Regional Council for an exemption under the Anti-Discrimination Act 1991 (Qld) in relation to the introduction of an ‘Identified Tourism’ category within its Community Land and Complimentary Commercial Activity Policy.

2.       The application by the Sunshine Coast Regional Council for an exemption under the Anti-Discrimination Act 1991 (Qld) in relation to the introduction of an ‘Identified Tourism’ category within its Community Land and Complimentary Commercial Activity Policy should not be transferred to the Queensland Industrial Relations Commission.

3.       The matter is to be set for a Directions Hearing at a time and date to be advised by the Registry.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – INDUSTRIAL RELATIONS COMMISSION – JURISDICTION – where an application was made by a Regional Council for exemption from the Anti-Discrimination Act 1991 (Qld) – where a preliminary question was raised as to the jurisdiction of the Queensland Civil and Administrative Tribunal to hear the application – whether the application should be transferred to the Industrial Relations Commission (Queensland)

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – OTHER MATTERS - where a Regional Council intends to introduce ‘Identified Tourism’ permits which are proposed to be only made available to Aboriginal and Torres Strait Islander people

Anti-Discrimination Act 1991 (Qld) s 7, s 21, s 22,
s 113AA, s 174A, s 174B. s 174C, s 193A, sch 1

Industrial Relations Bill 2016 cl 1097, cl 1098, cl 1099

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 52

APPEARANCES & REPRESENTATION:

Applicant:

Sunshine Coast Regional Council Legal Services

Respondent:

Principal Lawyer QHRC

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The Sunshine Coast Regional Council (‘the Council’) filed an ‘Application for exemption or renewal of exemption from Anti–Discrimination Act 1991’ in the Tribunal on 27 July 2020.
A question has arisen as to the jurisdiction of the Queensland Civil and Administrative Tribunal (‘QCAT’) to deal with this matter, and as to whether it should be transferred to the Queensland Industrial Relations Commission (‘the QIRC’).
A direction was made by QCAT on 8 September 2020 that the issue of whether the Tribunal has jurisdiction to determine the application, and whether the application should be transferred to the QIRC, is to be determined on the papers. These reasons are the determination of that issue.

The application

The application sought an exemption for five years from the operation of sections of the Anti-Discrimination Act 1991 (Qld) (‘the Act’).
The reason stated for the application was as follows:[1]
Council intends to amend its Community Land and Complimentary Commercial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 198
Decision Date

CaseChat Overview and Summary

The Sunshine Coast Regional Council brought an application for exemption under the Anti-Discrimination Act 1991 (Qld) concerning the introduction of an 'Identified Tourism' category within its Community Land and Complimentary Commercial Activity Policy. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether it had the jurisdiction to hear the application and, if not, whether it should be transferred to the Queensland Industrial Relations Commission (QIRC). The Tribunal determined that QCAT retained jurisdiction over the matter and that the application should not be transferred to the QIRC.

The primary legal issue revolved around the interpretation of the terms 'work' and 'work-related matter' as defined in the Anti-Discrimination Act 1991 (Qld). The Queensland Human Rights Commission (QHRC) argued that the application, which pertained to the issuance of permits for commercial activities, was a 'work-related matter' and thus fell under the jurisdiction of the QIRC. In contrast, the Sunshine Coast Regional Council contended that the issuance of permits was a policy decision unrelated to employment or industrial relations, and therefore, outside the scope of 'work-related matters'. The Council maintained that QCAT had the authority to consider the application.

The Tribunal examined the definitions of 'work' and 'work-related matter' and considered the legislative intent behind the amendments that introduced the jurisdictional split between QCAT and QIRC. The Tribunal concluded that the expressions 'work' and 'work-related' were intended to refer specifically to workplace-related anti-discrimination matters, as indicated by the Minister’s comments during the second reading speech of the Industrial Relations Bill 2016. The Tribunal found that the Council’s proposed 'Identified Tourism' permit was an authorisation related to the carrying on of a trade or business, but not an action within the workplace itself. Consequently, the Tribunal held that the QCAT had jurisdiction over the matter.

In its decision, the Tribunal ruled that the Queensland Civil and Administrative Tribunal has jurisdiction to determine the application by the Sunshine Coast Regional Council for an exemption under the Anti-Discrimination Act 1991 (Qld) in relation to the introduction of an ‘Identified Tourism’ category within its Community Land and Complimentary Commercial Activity Policy. Furthermore, the application should not be transferred to the Queensland Industrial Relations Commission. The matter was set for a Directions Hearing to proceed with further directions.

Orders